BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE
Perfume and cosmetics giant Estée Lauder has agreed to pay $1.1 million to a class of male employees who received less bonding leave and less return to work job flexibility than their female counterparts. Under its prior policy, men received just 2 weeks of parental leave to bond with a new child. Women received 6 weeks after their medical leave ended and flexible return-to-work benefits upon expiration of child bonding leave, such as temporary modified work schedules, to ease the transition back to work.
The EEOC filed suit against Estée Lauder in August 2017. On July 17, 2018, the court entered a consent decree resolving the case. In addition to the $1.1 million payment to the class of male employees, the consent decree imposes other requirements on Estée Lauder. The company must:
- Administer parental leave and related return-to-work benefits in a manner that ensures equal benefits
for male and female employees
- Provide training on unlawful sex discrimination
- Allow monitoring by the EEOC
Estée Lauder met the requirement of equal benefits during the course of the lawsuit when it voluntarily (with the EEOC watching over its shoulder) implemented a revised parental leave policy that provides all eligible employees, regardless of gender or caregiver status, the same 20 weeks of paid leave for child bonding and the same 6-week flexibility period upon returning to work. For birth mothers, these paid parental leave benefits begin after any period of medical leave occasioned by childbirth.
These are common terms imposed by the EEOC when it sues an employer and obtains a consent decree – a judgment agreed to by the employer to resolve the EEOC’s lawsuit. Other common terms include:
- Posting the consent decree on employee bulletin boards;
- Hiring a nondiscrimination consultant; and
- Reporting to the EEOC on all complaints received by the employer for a number of years.
As you can see, the payment by the employer pursuant to a consent decree is often just the tip of the iceberg in terms of total amount of internal costs, management time, and distraction caused by an EEOC investigation and lawsuit.
Observation: Many employers attract the EEOC’s attention by discriminating against pregnant employees and mothers – termination, forced leave, failure to promote, etc. Ironically, this lawsuit arises from an employer treating pregnant employees more favorably than men. I’m sure Estée Lauder is feeling the adage, no good deed goes unpunished!
Pings for Employers
- Check your policies. Leaves related to having a new child fall into 2 categories: medical leave for
the birth mother, and bonding leave for all parents.
- Any leave provided only to the birth mother must relate to her medical condition. Common “disability”
leave after birth is 6 weeks for a vaginal birth, 8 weeks for a C-section. If your plan noticeably exceeds
these numbers you are at risk of a challenge that the leave is not related to the birth mother’s health condition
and is discriminatory against non-birth parents.
- Leave for bonding must be equal for all parents – birth mothers and non-birth parents (fathers and second
mothers). Same for other new-child related benefits, such as the flexible return to work options offered
by Estée Lauder.
- To be competitive, parental/bonding leave should also be available to adoptive and foster parents. Some state
laws require this.
- To see what other employers are offering as voluntary paid maternity, parental, and caregiver leave benefits,
check out this resource from the National Partnership for Women and Families:
Leading on Leave: Companies With New or Expanded Paid Leave Policies (2015-2018).
- For more detailed guidance – at least from the EEOC’s perspective – you can review their
Enforcement Guidance on Pregnancy Discrimination and Related Issues.
Matrix Can Help. Matrix offers comprehensive leave management services, including administration of company leave policies such as maternity and parental leaves (paid and unpaid). For more information contact your account manager or your sales representative, or send an email to email@example.com.